Shawn M. Philbert

This decision addresses outstanding issues following a contentious family law trial, specifically concerning child support calculation, parenting orders, and costs.

The court dismissed the applicant's attempt to re-litigate the child support offset calculation and section 7 expenses, finding no arithmetical errors and no new evidence.

It clarified parenting orders, incorporating some of the parties' agreed-upon terms and making mutual orders for activity attendance.

On costs, the court found the applicant was more successful on the critical issues of material change and sole decision-making authority, despite her offer to settle not meeting the Rule 18 criteria for substantial indemnity.

Considering the divided success and the unreasonable conduct of both parties, the court awarded the applicant partial indemnity costs of $40,000.00, inclusive of HST and disbursements, payable within twelve months.

The Appellant (L) appealed a family law decision that found her guilty of parental alienation and implemented a custody reversal.

L raised several grounds of appeal, including the trial judge's refusal to conduct a judicial interview of the child, refusal to re-open the trial for fresh evidence regarding sexual abuse allegations (which were later disproven), alleged judicial bias, and an incomprehensible order.

The court dismissed the appeal, upholding the trial judge's discretionary decisions, finding no error in the fresh evidence application denial (due to lack of credibility and due diligence), no apprehension of bias, and that the reasons for the custody reversal were adequately provided and the order was functional.

The respondent father brought a motion to change seeking expanded parenting time and a reduction in child support.

The applicant mother brought a cross-motion seeking sole decision-making authority and reduced parenting time for the father.

The court found a material change in circumstances due to the father's inability to prioritize the child's best interests, particularly regarding medical issues and extracurricular activities, and the significant deterioration in the parties' ability to co-parent.

The court awarded sole decision-making authority to the mother and reduced the father's parenting time.

The court also imputed the father's income at $100,000 for child support purposes, finding him intentionally underemployed, and ordered proportional sharing of section 7 expenses for summer camps, while excluding gymnastics and language school going forward.

This is a family law case involving former spouses, Dr. K (applicant) and Ms. H (respondent), and their two daughters.

This was the second trial, following a previous decision that set aside their separation agreement and established the separation date.

The court determined child support, spousal support, equalization payment, and the disposition of the matrimonial home.

The court imputed income to both parties for support purposes, granted Ms. H's claim for a resulting trust over the matrimonial home, and dismissed Dr. K's claim for occupation rent.

The court also addressed the issue of security for support payments given Dr. K's relocation to New Zealand and conflicting information regarding his income and tax residency.

Further steps were ordered for a final determination on the vesting order and tax deductibility of spousal support.

This judgment addresses issues of section 7 expenses and section 9 child support in a shared parenting arrangement.

The court determined the parties' incomes, excluding the father's non-taxable benefits and the mother's RRSP withdrawals (which were used for legal fees).

It found the father's blanket refusal to consent to additional section 7 expenses unreasonable, ordering him to contribute to therapy and competitive dance, but not Montessori tuition or private swimming lessons.

For ongoing child support, despite a set-off calculation, the court ordered the father to pay an additional amount to the mother, considering the higher housing costs incurred by the mother and the father's greater ability to absorb costs.

This costs endorsement followed a trial of an issue where the Separation Agreement was set aside (Applicant's primary claim) and the date of separation was determined (Respondent's alternative position).

The Applicant, M.H., sought full costs recovery, while the Respondent, O.K., argued for no costs due to divided success and M.H.'s unreasonable conduct.

The court found M.H. to be the significantly more successful party on the dominant issue of setting aside the agreement, especially given her Rule 18(14) Offer to Settle and O.K.'s complete failure to make any offer.

Despite some unreasonable conduct by M.H. (financial disclosure, inadmissible evidence) leading to a modest reduction, and O.K.'s success on the ancillary separation date issue, M.H. was awarded substantial costs.

The court drew an adverse inference against O.K. for failing to provide his own Bill of Costs.

The trial determined whether a 2015 Separation Agreement should be set aside as a sham under section 56(4) of the Family Law Act, and if so, the parties' separation date.

The court found the Agreement to be a sham because the parties were not separated, did not intend to separate, and did not intend to be bound by its terms when it was signed, using it primarily for tax advantage.

Consequently, the Agreement was set aside.

The court determined the actual date of separation to be December 18, 2019, when the husband physically left the matrimonial home and formed the intention to separate, rejecting the earlier date claimed in the Agreement and the later dates proposed by the wife.

The father brought a motion seeking a 2/2/3 interim parenting schedule, while the mother brought a cross-motion for child support, sale of the matrimonial home, and sole decision-making.

The court dismissed the mother's motion as the issues had not been conferenced and lacked urgency.

The court denied the father's request for a 2/2/3 schedule, finding that his unpredictable work schedule and reliance on extended family did not support it.

The court ordered a parenting schedule that maintained the pre-separation status quo, with the children residing primarily with the mother and the father having alternate weekends and Wednesday evenings.

The applicant mother brought a motion for temporary ongoing child support, retroactive child support arrears, and financial disclosure.

The court ordered temporary child support based on the respondent father's actual income of $39,600, declining to impute a higher income.

The issue of retroactive child support was adjourned to trial due to the complex financial history, including the applicant's unilateral refinancing of the matrimonial home.

The court ordered a process for resolving the remaining disclosure issues and awarded the applicant $7,000 in costs based on divided success.

The respondent husband brought a motion to set aside a final order made after an uncontested trial, arguing that the equalization and spousal support calculations were based on mistakes and misrepresentations, and that his non-compliance was due to mental health issues.

The applicant wife brought a cross-motion to dismiss the husband's motion and to correct a $20,000 calculation error in the equalization payment.

The court applied the Mountainview Farms test and found the husband failed to provide a plausible explanation for his default or an arguable defence on the merits.

The husband's motion was dismissed, the order was amended to reflect the $20,000 credit, and costs were awarded to the wife.

This appeal concerned the equalization of net family property under s. 5(6) of the Family Law Act.

The appellant argued that the trial judge erred in finding that full equalization would be unconscionable and in awarding only 10% of the full equalization payment.

The Court of Appeal upheld the trial judge's decision, finding that the conclusion of unconscionability was reasonable given the short marriage, the extent to which the appellant's net family property derived from gifts from the respondent, and the disproportionate financial contributions.

The court also affirmed the trial judge's discretion in setting the unequal division at 10%, rejecting the appellant's argument for a pro-rated division based on the length of cohabitation.

The plaintiff mortgagee brought a motion for summary judgment for possession of the mortgaged property and payment of the mortgage debt.

The defendant mortgagor opposed, arguing she was duped into the mortgage by third parties who were acting as agents for the plaintiff, and sought leave to issue a third-party claim.

The court found no evidence of an agency relationship between the plaintiff and the alleged conspirators, and granted summary judgment as there was no genuine issue requiring a trial.

The court denied leave to issue the third-party claim, finding it would cause undue delay and prejudice to the plaintiff.

The applicant father sought resumption of access to his 7-year-old daughter after an altercation led to the child's refusal to see him.

This was the third hearing of the motion, following previous decisions that the respondent mother had wrongfully withheld access and that mediation was imperative.

A parenting mediator provided a progress report indicating positive developments, including daily video calls and two successful face-to-face visits.

The court ordered the continuation of mediation, addressed minor issues regarding fees and communication, and scheduled a further hearing for October 2020 to review progress.

This is a costs decision following supplementary submissions regarding section 7 child support expenses and costs of multiple motions.

The applicant mother had brought three motions commencing in November 2018, approximately 19 months after the parties settled most issues by Final Minutes of Settlement dated March 29, 2017.

The court found that the mother was unsuccessful on substantially all claims, with only a small credit for certain section 7 expenses.

The respondent father was awarded costs of $7,500 inclusive of HST and disbursements, enforceable through the Family Responsibility Office as an incident of support.

The mother was also ordered to pay $3,257.00 in net section 7 expenses to the father.

The Applicant Father sought resumption of access to his daughter, which had ceased after an altercation.

The court, following an earlier decision finding the Respondent Mother wrongfully withholding access, noted progress in virtual access and mediation.

However, it also addressed troubling behavior from both counsel and the Mother's non-compliance with a previous cost order.

The court ordered the Mother to pay outstanding costs, for parties to continue mediation, and scheduled a further return of motion to address access.

This is a costs endorsement following the dismissal of Ms. Bilek’s motion to stay an order removing a preservation order against Mr. Booth.

The court found Mr. Philbert’s (counsel for Mr. Booth) costs demand of $8,615.60 to be highly unreasonable and disproportionate, noting his failure to genuinely attempt resolution as instructed.

Ms. Chambers’ (counsel for Ms. Bilek) proposal of $3,000 was deemed reasonable.

The court fixed Mr. Booth’s costs at $3,000, inclusive, emphasizing the need for counsel to resolve issues, especially during strained court resources.

The respondent wife brought an urgent motion seeking a stay of a portion of a final order that directed the removal of a preservation order on the applicant husband's RRSPs, pending an appeal.

The appeal concerned the trial judge's interpretation of s. 5(6) of the Family Law Act regarding an unequal division of property based on unconscionability.

The motion was heard in writing due to the COVID-19 pandemic.

Applying the three-part test for a stay pending appeal, the court found that the respondent failed to establish a serious question to be tried, concluding that the trial judge had properly applied the high threshold for unconscionability.

The motion for a stay was dismissed.

The applicant sought urgent relief for the resumption of access to his 7-year-old daughter after a 9-month cessation following a physical altercation during an access transition.

The respondent opposed, citing the child's trauma and anxiety, relying on reports from a pediatrician and social worker.

The court found the reports to be one-sided and unreliable, and criticized the respondent for obstructing mediation and failing to encourage access, deeming her actions a "wrongful retention" of the child.

The court ordered immediate daily virtual access and mandated mediation, with costs awarded against the respondent.

The applicant mother brought three motions seeking to amend her pleadings, set aside a Final Consent Order from March 29, 2017, transfer the case to Superior Court, and obtain increased child support and retroactive section 7 expenses.

The respondent father opposed these motions.

The court dismissed most of the mother's claims, finding that the issues had been settled in the Final Order and that allowing amendments would cause unjust disadvantage to the father.

The court determined that prospective section 7 expenses from March 29, 2017 forward remained outstanding and required DivorceMate calculations to be prepared for final determination.

Derek Crespy appealed his conviction for assault and the imposed sentence of 45 days imprisonment.

The appeal court reviewed the trial judge's findings of fact, credibility assessments, and sentencing decision.

The court found no error in principle regarding the conviction, the rejection of self-defence, the credibility assessment of witnesses, or the reliance on photographic evidence.

The court also found no reasonable apprehension of bias by the trial judge and no error in principle in the sentencing decision, noting the aggravating factor of an unprovoked assault involving kicking to the head.

Both the appeal against conviction and the appeal against sentence were dismissed.